This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Thomas Edward Walsh, petitioner,
Commissioner of Public Safety,
Aitkin County District Court
File No. C701692
Darren C. Borg, Colich & Associates, 420 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, Darren Dejong, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103 (for respondent)
Donald D. Smith, Christopher P. Renz, Thomsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, MN 55435 (for amicus curiae The Blue Pages, Inc.)
Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, Klaphake, Judge.
Appellant Thomas Edward Walsh challenges the revocation of his driver’s license under Minn. Stat. § 169A.52, subd. 4(a) (2000), arguing that his limited right to counsel was not vindicated. Because the record is insufficient to demonstrate that the state carried its burden to vindicate Walsh’s right to consult a lawyer, we reverse.
After an Aitkin County deputy sheriff arrested Walsh for driving while under the influence of alcohol (DWI) and read to him the “Motor Vehicle Implied Consent Advisory,” Walsh stated that he wanted to speak with a lawyer before consenting to alcohol‑concentration testing.
The deputy provided Walsh with a telephone and a directory known as The Blue Pages. Walsh called a lawyer listed in that directory and then agreed to take a breath test. Because the breath‑testing device was inoperable, the deputy offered Walsh the option of a blood test or a urine test. Walsh chose the blood test. When the test revealed an alcohol concentration of 0.10 or more, The Commissioner of Public Safety revoked Walsh’s driver’s license.
Walsh filed a petition for judicial review, and the district court conducted an evidentiary hearing. One issue at the hearing involved the adequacy of The Blue Pages to provide Walsh with an opportunity to choose a lawyer.
The Blue Pages was not offered into evidence, but both the arresting deputy and Walsh testified about it. It is a telephone book with a list of attorneys’ telephone numbers. The commissioner stipulated that it is “produced by and for DWI defense attorneys specifically for the purpose of helping DWI suspects find a defense attorney.” The Blue Pages only lists DWI lawyers. The book contains 49 pages of ads and seven pages of telephone numbers without ads. There are 40 to 80 names on each page. The Blue Pages listed three lawyers in the areas of Aitkin and Crow Wing counties, and of those three lawyers two are listed with Twin Cities area code telephone numbers. At least one law firm – the firm representing Walsh in the implied consent hearing –was not listed.
The arresting deputy did not offer to Walsh any other telephone directories, although he testified that “[t]here’s a big stack of them in front of the booking area.” Walsh did not ask for any additional directory and appeared to the deputy to be satisfied with The Blue Pages.
The district court sustained the revocation of Walsh’s driver’s license. In a memorandum accompanying its order, the court stated that “[t]he Blue Book is over 100 pages with each page containing approximately 40‑50 names.” Even though no local directory was offered into evidence, the court then compared The Blue Pages with the Aitkin city telephone directory, covering both Aitkin and Crosby: “The Aitkin‑Crosby directory contained a total of 14 listings of attorneys. There were no advertisements for 24 hours legal service or criminal law.” The court concluded that The Blue Pages “was a better source for [Walsh] than the Aitkin‑Crosby telephone book.”
Walsh appeals, raising the issue of the adequacy of The Blue Pages to vindicate his right to choose an attorney.
D E C I S I O N
Before deciding whether or not to submit to alcohol‑concentration testing, a motor-vehicle driver has a limited right to consult with a lawyer of the driver’s choice. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991). Law enforcement officers have the affirmative duty to vindicate a driver’s limited right to counsel. Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 385 (Minn. App. 1993); affirmed on other grounds, 517 N.W.2d 901 (Minn. 1994). An officer may not arbitrarily limit the driver’s efforts to contact and speak with a lawyer. Id.
The issue of whether or not a driver’s limited right to counsel has been vindicated is a mixed question of law and fact. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Once the facts have been determined, we then decide the legal issue of whether the driver “was accorded a reasonable opportunity to consult with counsel based on the given facts.” Id. We review the district court’s findings of fact to determine whether they are clearly erroneous. Thompson v. Comm’r of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).
A driver’s right to consult with a lawyer is vindicated if the authorities provide a telephone and give the driver a reasonable opportunity to talk with a lawyer. Prideaux v. State, Dept. of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976). There is no issue here as to the provision of a telephone or the reasonableness of the time Walsh was allowed to speak with a lawyer. Rather, the question is whether The Blue Pages truncated Walsh’s reasonable opportunity to choose a lawyer because the publication included only some lawyers practicing in a certain specialized field of law.
We have held that the provision of a list of five lawyers who handled DWI cases in the local geographical area unreasonably restricted a driver’s choice because the driver “was essentially limited to the attorneys on this list * * * .” McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995). We noted in that case that the driver was not given access to telephone books or to directory assistance. Presumably those sources would have given the driver a broader group of lawyers from which to choose.
Walsh argues that The Blue Pages publication was too restrictive to satisfy his right to choose a lawyer. The commissioner contends that the deputy gave Walsh a telephone, a statewide directory of specialized lawyers, and sufficient time to call a lawyer. The commissioner also points out that Walsh himself seemed to feel The Blue Pages was an adequate source of lawyers because he did not request additional sources. But law enforcement officers have the affirmative duty to provide adequate sources if a driver asks to be allowed to contact an attorney, and the driver’s mere acceptance of the source provided is not dispositive of the issue of the adequacy of that source. Id.
In deciding the issue of the adequacy of The Blue Pages, the district court compared that publication with the local telephone directory. Although the use of a comparison was likely proper, the court based its comparison on matters not in evidence.
As we have noted, neither The Blue Pages nor a local directory was offered into evidence. There is nothing in the record to support the court’s findings that the book contains “over 100 pages” with each page containing “approximately 40‑50 names.” Nor does the record contain evidence that the local directory has “a total of 14 listings of attorneys.” The record does not show that either party asked the court to take judicial notice of either directory. Thus, the record is devoid of evidence upon which a comparison could have been made.
McNaughton suggests that the issue with sources of attorneys is one of restrictiveness versus reasonable comprehensiveness. That issue seems resolvable only through a comparison of one source with another. But the district court cannot compare sources unless they have been received into evidence in some way that provides full, relevant descriptions. We cannot review “facts” that do not exist in the record.
Although this record contains some information about The Blue Pages and some information about the local directory, it does not contain the evidence upon which the court based its comparison. We cannot determine from this sparse record whether The Blue Pages is impermissibly restrictive. Although the lawyers listed in The Blue Pages practice in the fields of DWI and criminal cases, we do not know if they also practice in other fields. Walsh argues that he should not have been limited to DWI and criminal lawyers; instead, he should also have been able to choose from, for example, family lawyers. Maybe so, but we cannot tell without sources for comparison whether the DWI lawyers also practice family law, or other types of law.
The commissioner has the burden of producing sufficient evidence to support the determination that Walsh’s limited right to counsel was vindicated. The record is inadequate to show that. Findings based on information outside the record are not adequate to support such a showing and are, thus, clearly erroneous.